By Obumneme Ezeonu Esq
In recent times, the hijab has stepped out of its closet in religious space into the public domain. In many countries, the right to wear the hijab and other forms of religious dress has been contested on grounds of human rights. The controversy generated by the hijab has assumed a variety of forms. Over the years, the hijab has metamorphosed into a sportswear, a security outfit, fashion apparel and other forms beyond the religious usage to which it was previously confined. Almost all Islamic scholars attribute the use of the hijab to certain prophetic pronouncements in the holy books of Islam, the Quran and the Hadith. The point of divergence among Islamic scholars and countries is whether the said requirement is mandatory or not. Some Islamic countries like Turkey and Tunisia do not consider the hijab as a compulsory sartorial requirement of Islam and thus banned its use in secular spheres like the school. Some other Islamic countries like Iran and Saudi Arabia adopt the opposite practice. Nigeria has joined the fray. In Osun State, the use of the hijab is permitted. The Lagos State Government disallowed the use of same. This later instance led to the Court of Appeal case under review which set aside the judgment of the trial court, and upheld the right of female Muslim students to wear the hijab in and outside school as a form of human rights. We shall attempt to analyse this decision in the light of Islamic jurisprudence, relevant human rights instruments and the Nigerian constitution.
Key words: Hijab, Islam, freedom of religion, human rights, constitution, school, Nigeria.
Several decades ago, Karl Marx remarked that religion is the opium of the people. That statement remains the most apt description of the destructive influence of religion on society and its slur on human civilization. There are many harmful substances available to humanity. Why, one would ask, did Karl Marx use opium as an analogy, in preference to the others? At a point in history, opium was cheaper than alcohol and was generally available as a cure for everything. One of the harmful effects of opium is addiction. It is also used for pain relief. Analogically speaking, addiction to religious beliefs could lead to a number of unsavoury results for the individual and the society at large. Like opium, religion is cheap, available, analgesic and addictive. This danger becomes amplified in a multi-religious country like Nigeria which has recorded quite a number of phenomenal crises and compromises based on religious causes and disputes. Of the different faiths that inhabit its religious space, Christianity and Islam have proved to be dominant over the years in Nigeria. This scenario has generated a lot of crises ranging from the sociopolitical to the constitutional. The resentment and opposition that greeted the possible Muslim-Muslim ticket’ during the 2015 Presidential election could have adversely affected the electoral fortunes of the then opposition party that presently rules Nigeria had the party not adhered to the ‘Muslim-Christian ticket’ arrangement. Nwabueze recounts that the establishment of the Sharia Court of Appeal was a constitutional compromise to save a situation where Muslim members of the then Constituent Assembly had wanted or demanded a wholesale constitutional recognition and adoption of Islamic law.
Recently, the issue of the use of the hijab in schools has joined the queue of constitutional issues engendered by religious concerns. The controversy had reared its head in Colleges of Education and Universities attracting divergent court judgments. Its adoption in public Primary and Secondary Schools is the subject matter of the latest controversy. In Osun State, a State High Court upheld the right of female Muslim students to wear the hijab as a part of their school uniform. This led to some form of unorthodox reactions from Christians who ordered their wards to put on Christian religious dresses. As the controversy was stoking, two minors (students of Atunrase Junior High School, Surulere, Lagos State, a public school owned and managed by the Lagos State Government) and the Registered Trustees of Muslim Students’ Society of Nigeria (MSSN) sued the Lagos State Government and other relevant agencies in a matter of the enforcement of the fundamental right of female Muslim students to wear the hijab in schools. The case was dismissed at the High Court of Lagos State coram Onyeabor J. The Applicants appealed. The Court of Appeal in Abdulkareem v Lagos State Govt. set aside the judgment of the High Court and affirmed the right of the female Muslim students in public secondary schools to wear the hijab. It is our purpose to review the reasons given by the Court of Appeal in the light of Islamic jurisprudence, relevant human rights instruments and decisions, and relevant provisions in the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. Undressing the Hijab as a Doctrinally Sanctioned Cloth
The hermeneutical reference-point for advocating that the hijab is a human rights issue is the view that the wearing of the hijab is a religious injunction in Islam. The Nigerian daily newspaper, The Nation, in its Editorial of 16 June 2016 described the Osun State High Court judgment permitting female Muslim students to use the hijab in public schools as: ‘That Curious Verdict’. Some Muslim groups reacted adversely to this Editorial. They claimed that the hijab is neither a dress code nor a functional equivalent of religiously-associated garments such as choir robes as wrongly construed by the Christian Association of Nigeria (CAN). For them, ‘Hijab is a doctrinally sanctioned and an inalienable part of the day-to-day identity manifestation and lived experience of a female Muslim’.
These groups sought to create a distinction between ‘religiously-associated’ and ‘doctrinally-sanctioned’ dress codes. A point that must be made is that feminine modesty is not an exclusive preserve of Islam. If by ‘doctrinally-sanctioned’, the agitators meant that there is an injunction to that effect in the Qur’an, the Bible itself contains a number of injunctions relating to modesty in female dressing. The book of 1 Timothy 2:9 provides thus: ‘Likewise also that women should adorn themselves in respectable apparel with modesty and self-control, not with braided hair and gold or pearls or costly attire’. In fact, the Bible specifically in Deuteronomy 22:5 provides that ‘A woman shall not wear a man’s garment, nor shall a man put on a woman’s cloak, for whoever doest these things is an abomination to the LORD your God’.
These Biblical texts have been given different canonical interpretations by different Christian sects with the result that some see these admonitions as mere religious observances that do not speak to the real dimension of spirituality. They equate strict observance of this to the hypocritical attitudes of the Pharisees who would scrupulously maintain the religious rituals of Judaism as admonished by the Law of Moses, yet will not lift a finger to help their fellow. Some denominations, like the Catholics, take it seriously. Pope Benedict XV has taught clearly about modesty in an encyclical letter (Sacra Propediem 1921), commemorating the 7th centenary of the founding of the Franciscan Third Order. His Holiness stated thus: ‘One cannot sufficiently deplore the blindness of so many women of every age and station. Made foolish by a desire to please, they do not see to what degree the indecency of their clothing shocks every honest man and offends God. Most of them would formally have blushed for such apparel as grave fault against Christian modesty.’ Happily, it is not the argument of these agitators that the school uniforms used in the various public schools are immodest. If the point is all about modesty, why bring unnecessary conflict into an otherwise peaceful environment made for the education of minds primarily.
Therefore, the claim to the use of hijab as a requirement of modesty is a false claim to freedom of religion. Ironically, Christians in Osun State protested against the use of hijab not by preventing the Muslim women from wearing it but by wearing their own religious dresses like choir gowns. A choir gown is modest clothing by all standards. Yet, the Governor, Rauf Aregbesola, threatened to expel such students for putting on ‘inappropriate attire’. In other words, within the school setting, modest Muslim clothes are appropriate, whilst modest Christian clothes are inappropriate. As a Nigerian Journalist, Ray Ekpu, observed, The hijab is gradually becoming a major subject of public discourse in Nigeria. It is perhaps time to fully address or undress it. In December last year, a group of Moslem youths under the aegis of Moslem Youths in Da’wab wanted the hijab introduced into the National Youth Service Corps (NYSC) programme…. The then Director General Johnson Olawumi, told them that he was a respecter of the rights of all corps members but the ban was for security reasons. (Emphasis supplied)
According to Oba, ‘Islam recognizes as a factual matter that Muslims are of varying degrees of faith but enjoins every Muslim to strive to greater heights of faith. A Muslim cannot claim to be a true believer (Mumin), that is, a person with faith (iman) unless he or she complies or strives to the utmost of his or her ability to comply with all the tenets of Islam. Any pious Muslim woman would therefore feel strongly, the imperative to adopt the hijab. This is because it is a great sin not to do so.’
This position appears not to be a settled theological matter in Islam. Contrary to the assertion that the hijab is a doctrinally-sanctioned piece of clothing with a mandatory application, there have been counter-pressures from certain Islamist feminists who see the hijab as a symbol of oppression for the women folk and its abolition as a component part of the struggle to install human rights safeguards for Muslim women. The controversy surrounding the wearing of the hijab in Islam is not a matter of ‘varying degrees of faith’ as presented by Oba but runs deeper than that. It is a matter of exegetical differences. Whether the hijab is an Islamic injunction is still a vexed issue. The foregoing account of the religious significance of the hijab appears to be the conservative view. It is not subscribed to by a majority of Muslims. In this regard, The Economist Magazine observed as follows:
Fashion is intertwined with the debate, about what Islam prescribes for women’s clothing. Most Muslims read the
Koran as describing the Prophet Muhammad’s wives as covering their hair; only some interpret this as a command to all women. For the most conservative, the very concept of Islamic fashion is anathema. Some imams post criticisms in online forums of women who wear skinny jeans or lots of make-up, even together with a hijab, since they attract attention. Others retort that Allah created beauty and that pretty clothes help dispel the misconception that all Muslim women are oppressed. (Emphasis supplied)
It does appear then that the argument that the wearing of hijab is an Islamic injunction breach of which amounts to disobedience of Allah is not a monolithic interpretation of the Qur’an. Indeed, some Muslim human rights activists see the sustenance of that view as an extension of the recent conservative movements to subjugate the rights of Muslim women. Nomani and Arafa are well known Muslim human rights activists. In an article: ‘As Muslim Women, we actually ask you not to wear the hijab in the name of interfaith solidarity’ published in The Washington Post, they argued that the wearing of the hijab is not an essential part of Islamic practice. According to them, the spectacle of women wearing the hijab is a painful reminder of the well-financed effort by conservative Muslims to dominate modern Muslim societies. This modern-day movement spreads an ideology of political Islam, called ‘Islamism’, enlisting well-intentioned interfaith dogooders and the media into promoting the idea that ‘hijab’ is a virtual ‘sixth pillar’ of Islam, after the traditional ‘five pillars’ of the shahada (or proclamation of faith), prayer, fasting, charity and pilgrimage. They rejected the interpretation that the ‘hijab’ is merely a symbol of modesty and dignity adopted by faithful female followers of Islam.13 For them,
… in interpretations from the 7th century to today, theologians, from the late Moroccan scholar Fatima Mernissi to UCLA’s Khaled Abou El Fadl, and Harvard’s Leila Ahmed, Egypt’s
Zaki Badawi, Iraq’s Abdullah al Judai and Pakistan’s Javaid
Ghamidi, have clearly established that Muslim women are not required to cover their hair.
According to the study carried out by Ekpu: ‘Three scholars, Karem Armstrong, Reza Ashan and Leila Ahmed have stated that actually ‘the stipulations of the hijab were originally meant only for Prophet Muhammad’s wives and were intended to maintain their inviolability. This was because Muhammad conducted all religious and civic affairs in the mosque adjacent to his home.’ The three scholars maintain that during the Prophet’s lifetime no other Moslem woman wore the hijab. Aslon says that Muslim women started to wear the hijab simply to emulate Muhammad’s wives who were revered as ‘Mothers of the Believers’ in Islam. She also states that there was no tradition of veiling until around 627c in the Moslem community.’ Recently, the Nigerian newspaper Vanguard reported a story with the headline: ‘Egypt: Two Muslims fight on TV over hijab’. It transpired that Sheikh Mustafa Rashed, a Muslim legal expert known for his lax rulings on religious matters, ticked off Egyptian lawyer Nabih Al-Wahsh. He vexed Al-Wahsh, when he said the headscarf was a cultural tradition, not a religious duty. The guests hurled insults at each other – and Al-Wahsh questioned Rashed’s scholarly credentials. Doi recounts that in Shari’ah (Islamic Theology), actions are divided into five classes, as follows:
Fardor Wajib: a compulsory duty the omission of which is punished.
Mandubor Mustahab: An action is rewarded, but the omission is not punished.
Jaiz or Mubah: An action which is permitted but is legally indifferent.
Makruh: An action which is disliked and disapproved by the Shari’ah but it is not under any penalty.
Haram: An action which is forbidden. It is punishable by law.
One indeed would ask: what is the punishment prescribed in Islam for not wearing the hijab? None! Some Muslim scholars see the wearing of the hijab as a permissible practice which does not command any religious obligation. It is, therefore, not all Islamic practices or beliefs that would amount to deprivation of human rights if same are not enforced. The wearing of the hijab in public primary and secondary schools is a classic case in point. In the light of the foregoing, the attempt by some groups or persons to present a monolithic interpretation of Islam’s sacred books to the effect that the wearing of the hijab is a religious obligation and an act of worship does not reflect the true theological state of affairs in Islam. Cooper put the point poignantly thus:
Debates about what is and is not orthodox, who is and is not heretical, have been at the core of the history of Islamic West Africa. Thus, while all Muslims argue that their own practices are Islamic, they don’t all agree about what constitutes proper Islamic practice.
The insistence upon a monolithic textual interpretation of Islam by some Muslims and Scholars of Islam contributes to the perception that there is ‘real’ (established, scholarly, and orthodox) Islam and some other ambiguously Islamic phenomenon referred to as ‘folk’ Islam. As Louis Brenner observes, scholars and activists need an approach that recognizes the heterogeneity and pluralism of both Islamic and indigenous practices. Debates about what constitutes normative Islam are at the heart of the history of religion in much of Africa…. (Emphases supplied).
This phenomenon of exegetical differences does not obtain only in Islam. It applies to all religions whose canons of belief are based on sacred texts like Christianity and Judaism. As will be demonstrated anon, if every religion were to enforce its religious practices in all spheres of secular arena based on their exegetical colourations, there will be disorder in the society as showcased in the Osun drama.
3. Addressing the Hijab as a Fundamental Rights Issue
Rights to freedom of thought, conscience and religion and freedom from discrimination are guaranteed by sections 38 and 42 respectively of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 2, 5, 8, 10, 17 and 19 of the African Charter on Human and Peoples Rights, and a host of other human rights instruments. Freedom of religion and religious beliefs could range from issues of dress, food (some meats are considered forbidden in some religions), marriage (some religions believe in monogamy, and some in polygamy), medical treatment, etc. For example, Jehovah’s witnesses do not believe in the sanctity of transfusion of blood. In this vein, Oba remarks thus:
The requirement of hijab for Muslim women is a recognized tenet of Islam. To deny Muslim women the right to any aspect of the hijab would be tantamount to denying them the right to be Muslims. The longing of female students to comply fully with the Islamic mode of dressing is a legitimate human right, a fundamental right, and a constitutional right in Nigeria.
It is important to note that fundamental rights are not absolute. In Nigeria, they are subject to the limitations provided in section 45(1) of the 1999 Constitution (as amended). The said section provides thus:
45(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-
in the interest of defence, public safety, public order, public morality or public health; or
for the purpose of protecting the rights and freedom of other persons.
It is contended that even if the right to wear the hijab is a fundamental right, it is subject to the above statutory limitations. Appellants’ counsel in the case under review admitted as such when he cited the case of Hassan v EFCC to the effect that the enjoyment of fundamental rights may be curtailed by appropriate authorities where there are good grounds for doing so. To this extent, it is immaterial whether the right to wear the hijab is mandatory or not. Indeed, the Court of Appeal in the unreported case of The Provost, Kwara State College of Education, Ilorin & 2 Ors. v Bashirat Saliu & 2 Ors held: ‘The use of veil by respondents, therefore, qualifies as a fundamental right under section 38(1) of the Constitution. It is immaterial whether it is compulsory or otherwise.’ In his concurring judgment, Oredola, J.C.A. stated thus:
The right of the respondent to wear the hijab, veil within the school campus and indeed anywhere else is adequately protected under our laws. Human right recognizes and protects religious rights. Section 38 of the 1999 Constitution of the Federal Republic of Nigeria guaranteed freedom of religion to all and sundry. Thus, things that lawfully constitute open manifestation, propagation, worship, teaching, practice and observance of the said religion are equally and by extension similarly guaranteed and protected by the Constitution. Indeed, the hijab, niqab or burqa, being part and parcel of Islamic mode of dressing and by whatever standard a dignified vividly decent one, cannot be taken away by other law other than the Constitution. (Emphases supplied)
An observation is apposite at this stage. The lead judgment and the concurring judgment of Oredola, J.C.A. in the case of The Provost, Kwara State College of Education, Ilorin & 2 Ors. v Bashirat Saliu & 2 Ors25 throw up something of a paradox. The first impression, from the lead judgment, is that the wearing of the hijab is a fundamental right of all female Muslims not minding whether it is compulsory or not. Thus, it cannot be derogated from except by some law consistent with the Constitution. The second impression, from the concurring judgment, is that the wearing of the hijab is a fundamental right borne out of some religious compulsion and which no law can derogate from except the Constitution. In other words, does it mean that even a law consistent with the provisions of section 45(1) of the 1999 Constitution cannot ban the wearing of the hijab? How did the Court of Appeal resolve this paradox in the case under review especially as it relied heavily on this case in making its decision?
4. Facts and Analysis of the Case under Review: Abdulkareem v Lagos State Government
As the facts of the case under review are well summarized in the editorial notes of the publishers of Nigerian Weekly Law Reports, they are replicated thus: The 1st and 2nd appellants were minors and female students of Atunrashe Junior High School, Surulere, Lagos State, a public school owned and managed by the 1st respondent. The 3rd appellant is an Incorporated Trustee registered under the Companies and Allied Matters Act, and was established to promote the welfare of Muslim students and to propagate Islamic tenets in Nigeria. In January 2012, the Vice-Principal called out the 1st and 2nd appellants during the school’s assembly and openly reprimanded them for wearing hijab (female Muslim head covering) on their uniforms outside of the school. The Vice-Principal also directed the school’s teachers to remove and seize hijab worn by all female Muslim students of the school. He warned all female Muslim students of the school to stop wearing hijab on their school uniforms within and outside the school premises. Subsequently, the fathers of the 1st and 2nd respondents went to meet the Vice-Principal to resolve the matter to no avail.
So the 1st and 2nd appellants sued the respondents at the High Court of Lagos State by means of an originating summons for enforcement of their fundamental human rights through their respective parents as their next of kin, with the 3rd appellant as a co-claimant in the suit. The appellant’s case was that the wearing of the hijab in public places by a female Muslim is cardinal principle of Islamic faith in which the 1st and 2nd appellants had been brought up from their pre-teen years. The appellants asserted that any directive by the respondents restricting the 1st and 2nd appellants and female Muslim members of the 3rd appellant from wearing hijab within or outside any educational institution in Lagos State was wrongful and unconstitutional, because it breached the rights to freedom of thought, conscience and religion, freedom from discrimination, right to dignity of the human person and right to education guaranteed under sections 38 and 42 of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Articles 2, 5, 8, 10, 17 and 19 of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act. Consequently, the appellants sought several declarative reliefs and an injunctive order against the restriction on the wearing of hijab in schools owned and managed by the 1st respondent. And they relied on the decisions of the High Court of Lagos State and the Court of Appeal.’
In the course of arguing the appeal, a number of issues were raised and canvassed by the parties. As these issues guided the court in reaching its decision, it is pertinent to review them:
(a) Judicial Notice of Government Policy
The Appellants’ counsel argued that if there is any government policy on wearing of the school uniform, it will be available in a document or statutory instrument. In relying on section 122 of the Evidence Act 2011, counsel argued that the court cannot take judicial notice ‘which was not shown to have existed by any credible evidence or which does not fall within items or facts which the law allows it to take judicial notice of.’27 On the contrary, respondents’ counsel urged the court to rely on section 124 of the Evidence Act to hold that wearing of school uniforms in our schools is a matter of common knowledge.28 Counsel also contended that the paragraphs of the affidavit affirming the existence of such a government policy were not contradicted by the appellants. In resolving the issue, the Court of Appeal, per Gumel, J.C.A., after exploring the dictionary meanings of policy stated that a policy requires some form of documentation in form of Circulars, Rules, Regulations, Orders, Guidelines, Directions, etc. The Court then held thus:
A court is not allowed to make findings on documents that have not been laid in evidence before it. I am of the view that it would amount to an undue speculation for the lower court to do more than hold that there is in existence an old policy of Lagos State Government on school uniforms in its public schools. That is no more than what can be deemed to have been admitted by the appellants in the circumstance or may be even the objectives of that old policy. Whether that old policy is relevant and up to date as to ban or restrict the wearing of Hijab by female Muslim students must remain a moot question subject to a proper perusal of its actual contents. Whether that old policy is relevant or could be said to be relevant said to be relevant (sic) against the provision of the 1999 Constitution, (as amended), and as now being sought to be enforced by the appellants is also another huge question.’ (Emphasis supplied)
It does appear that a policy statement by government requires some form of documentation. In the case of S.J. Bamgbade v Vice Chancellor, O.A.U., the High Court at Ife had occasion to interpret the ‘university guideline’ on dress code. In the case of Bashirat Salim & Ors v The Provost, Kwara State College of Education, Ilorin & Ors, the High Court of Kwara State had the occasion to interpret a ‘circular’ on dress code. Even in the case of Attorney General of Lagos State v Dosunmu (relied on by the respondents in the case under review) the policy therein is contained in a legislation i.e. Edict No. 3 of 1976 and Legal Notice No. 9 pursuant to which it was issued. To take judicial notice of information contained in a gazette, the gazette must be tendered in court. But in this case, there was no affidavit countering the deposition of the appellant to the effect that there is such a policy. This is deemed admitted. But as the Court of Appeal earlier stated: Whether that old policy is relevant and up to date as to ban or restrict the wearing of Hijab by female Muslim students must remain a moot question subject to a proper perusal of its actual contents. The appellant contended that if such a policy exists, it is discriminatory and ought to be struck out. The Court of Appeal did not make any determination with respect to this submission as it held that no such policy exists. As the Court of Appeal held:
If the lower court was entitled to take judicial notice of the existence of some old policy with respect to school uniforms in Lagos State, it must additionally also take judicial notice of the fact that such policy must have been embodied, as is usual with governments at all levels to issue Circulars, Rules, Regulations, Orders, Guidelines, Directions etc. with respect to the management, control, observance etc. of certain subject matters. It is compelling and necessary, in my view, for the lower court to consider and take judicial notice of these collateral circumstances for a proper decision in the matter before it.
Unlike Universities and Polytechnics, there are no laws or statutes setting up secondary schools and primary schools. Before such schools are established, they must be registered with the relevant ministries of education. Intending entrants to the said schools are usually given a document which is known as ‘Prospectus’. This is a form of guideline that states the regulation of the relevant school which includes issues of uniform. What the respondents would have done, in this case, was to have annexed the Prospectus of the relevant school in their counter-affidavit.
But the Appellant in this case also contended that the regulation guiding the wearing of school uniforms in primary and secondary schools is a matter of common knowledge. He then urged the Court of Appeal to take judicial notice of that fact. According to the Supreme Court in the case of Osafile v Odi (No.1),
… Judicial notice founded on common knowledge is founded on the Judge’s actual knowledge, experience and memory as a member of society; sometimes however, he finds it necessary to refresh his memory by reference to records, books or reports. The material foundation of notice of a statute is the production of a copy of the statute; that of any official act is the production of the official Gazette. Where the matter to be noticed is an acquired knowledge the only foundation is the production of the book, document or other material which will enable the court to do so under section 73(3) [now 74(3) of the Acts.38
It does appear that the wearing of a school uniform is common knowledge. It is a common experience in Nigeria that schools are identified with their uniforms. A Judge being a member of the society is taken to have actual knowledge, experience and memory of that fact. Unfortunately, the respondents did not state this position in their counter-affidavit. A perusal of the relevant paragraphs of the respondents’ counter-affidavit reveals their stand to the effect that the wearing of the school uniform is a government policy. The counter-affidavit did not say anything about common knowledge. As Gumel, J.C.A. stated: ‘Apart from arguing that section 125 of the Evidence Act does not apply to the facts in this appeal, learned counsel Mr. Olakunle Ligali, on behalf of the respondents merely added that he was urging this court to rely on section 124 of the Evidence Act to hold that wearing of school uniforms in our public schools is a matter of common knowledge and that matters of common knowledge needed no proof.’ Since this point is not contained in the affidavit, it stands to correct judicial reasoning that the court cannot put it in consideration in resolving this issue as it did not form part of the evidence in the case.
(b) Raising the Issue of Secularity Suo Motu
The appellants equally complained that the issue of the secular status of Nigeria was raised suo motu by the trial Judge without calling on the parties to address on it. In resolving this issue in favour of the appellants, the Court of Appeal, per Gumel, J.C.A.
The learned SAN, on behalf of the appellants faulted this approach of the lower court in raising the issue whether section 10 of our extant Constitution makes this country a Secular State. A very highly controversial issue. According to the SAN, the issue, as contentious as it is, was raised suo motu and resolved without the input of any counsel. Against this position of the appellants, learned counsel on behalf of the respondents disagreed and went on to submit even if, it was correct that the issue was raised suo motu and resolved without addresses by counsel it did not matter as the eventual finding in the resolution of the issue did not prejudice the case of the appellants and it also did not occasion any miscarriage of justice in the circumstance. I beg to differ, because it was the ultimate finding of the lower court on the secular status of Nigeria that led it to find sanctuary or refuge in the decision in Leyla Sahin v Turkey and to use it as the main authority to dismiss the case of the appellants. Let me point out that the law frowns at a situation whereby a court makes a case for the parties before it. In Skye Bank Plc v Akinpelu (2010) 9 NWLR (Pt. 1198) 179, the Supreme Court held that it is not the duty of a court to make its own case outside the evidence and pleadings of the parties. Also, in Amasike v The Registrar General C.A.C. (2010) 13 NWLR (Pt.1211) 337, the Supreme Court held that if at all an issue was raised suo motu then the parties should be given the opportunity to be heard on the issue so raised.
Again, the Court of Appeal is right in its pronouncement. An example of this principle is a situation where the court raises the issue of non-suit of a case suo motu. It is remarkable that in such a situation the court is at liberty to dismiss, affirm or non-suit a party with respect to some reliefs or even all the reliefs. In other words, the court after an address by both counsel could affirm some reliefs, dismiss some reliefs, non-suit with respect to some reliefs, dismiss all the reliefs, affirm all the reliefs or non-suit the case in its entirety. It is sad that the respondents did not raise the issue of secularity at the lower court. It would have provided a window of opportunity to lay to rest the controversy surrounding the interpretation of section 10 of the 1999 Constitution (as amended). The argument has always been that the word ‘secular’ was not specifically mentioned in the constitution. For that reason, Nwabueze preferred the term ‘religious neutrality’. However, we find apposite the apt response of Ogbu to this charge that Nigeria is not a secular state simply because the term ‘secular state’ was not mentioned in the 1999 Constitution (as amended). According to him, It goes without saying that the Constitution did not expressly state that Nigeria is a secular state. However, notwithstanding the Constitutional silence on the matter, the intention of the drafters of the Constitution can be gathered from a community reading of the relevant provisions of the Constitution. There are postulates behind the words of the Constitution which could be gleaned from the Constitutional provisions even when the express words are not used. For instance, there is no express mention of separation of powers in the Constitution but the Constitution has been interpreted as importing the doctrine of separation of powers.
(c) Relying on Foreign Decision as against Nigeria Decisions
The appellants equally complained that the trial Judge relied on a foreign decision which has a persuasive effect as against the binding decision of a Court of Appeal the existence of which the court’s attention was drawn to. The appellants also complained that the court relied on the said foreign decision (a European Human Rights case with respect to the ban of the hijab in Turkey) suo motu by the trial court without inviting parties to address him on them. According to the appellants, no party relied on this decision in their written addresses. A short reply with respect to this issue is that the court is free to rely on a decision or point of law to resolve an issue even if parties did not rely on them during trial or submission. In other words, ‘the rule of suo motu’ mandating the invitation of parties to address the court relates only to ISSUES not raised by them, not on PRINCIPLES OF LAW OR DECISIONS not cited by them, but applied to the issues raised by them. In the case of Hein Nebelung Isensee K.G. v U.B.A. Plc, the Court of Appeal, per Peru, J.C.A., restated the position of the law thus:
I am of the view that a Judge is duty bound to deduce law from the facts before him. He is also duty bound to invite counsel to parties to address it when new issues arise in a matter….But when, not where, it applies, principles of law not cited by counsel whether statutory, or judicial can be called in aid in the course of writing its judgment, as he rightly did. Like in this case, estoppel is discernible from the facts pleaded by the respondent, and not denied by the appellant.46
Could it be said that the issue of the secularity of Nigeria is discernible from the facts of the case under review? Indeed, the pronouncement of the Court of Appeal is worth repeating, … it was the ultimate finding of the lower court on the secular status of Nigeria that led it to find sanctuary or refuge in the decision in Leyla Sahin v Turkey and to use it as the main authority to dismiss the case of the appellants.
Indeed, the court is at liberty to apply suo motu a principle of law or rely on a case law in resolving issues raised before it. The rule requires that parties be only called to address it when the matter raised suo motu is an issue not canvassed by both parties. If the issue of secularity was canvassed at the lower court, the reliance placed on the case of Sahin v Turkey (supra) would be appropriate. The issue of relying on a foreign decision in preference to Nigerian decisions does not even arise in this case as a distinction between the applicability of the cases would have foreclosed that issue.
5. Decision of the Court of Appeal: A Review
With respect to the issue of wearing the hijab as a fundamental right of every female Muslim student, the Court of Appeal, per Gumel, J.C.A. held thus:
It is beyond dispute that the fundamental human right enshrined is (sic) section 38 is not absolute, as its enjoyment or even existence is subject to certain exception stipulated in section 45. According to section 45 the right in section 38 is not meant to invalidate any law that is reasonably justifiable in a democratic society. Any such law contemplated under section 45(1) must have been enacted law that was meant to safeguard the defence of the country, public safely of its people or public health and morality. Also such a law could invalidate section 38 if it was meant to protect the rights and freedoms of other persons. The enjoyment of the right under section 38 may also be curtailed or restricted during a duly proclaimed and approved period of emergency. For example, during the height of the Boko Haram menace in certain states of this country, many restrictions were placed on the practice and observance of religious activities to the extent that Muslims could not perform some of the 5 daily prayers in congregations. It was that bad. But because it was for defence, security, public safety, etc. such laws, regulations, curfews etc. were duly observed and enforced.48 (Emphasis supplied)
In relating the above interpretation of the Constitution to the facts of this case, the Court of Appeal held thus:
With respect to the facts and circumstances in the appeal, I am of the view that it is only a validly enacted law by the Lagos State House of Assembly as contemplated or authorized by section 315 of the Constitution or duly authorized Order, Regulation, Circular, Guidelines, etc. issued by the relevant authority of the Lagos State Government that can be within the contemplation of section 45. There was no such legislation or regulation, etc. before the lower court to enable it to place a restriction or disability on female Muslim students to weal (sic) Hijabs on their uniforms. (Emphasis supplied)
As will be shown shortly, this interpretation of the Constitution is unduly restrictive and imputes a meaning not intended by that section. By the principle of hierarchy of laws, not all laws are made by the State Executive or the House of Assembly or even any legislative body strictly speaking. Even a bye-law or the constitution of a traditional institution, club or co-operative society qualify as law and can come within the provision of section 45 of the Constitution of the Federal Republic of Nigeria. This point is demonstrated by the case of Aniekwe v Okereke which dealt with the Constitution of a cartel of traders known as Plateau State Palm Oil Traders Association. At the trial court, the respondent had instituted a fundamental rights matter claiming breach of his fundamental rights by the said Association. The trial court found that the Association was duly registered and had objects that are legal. Respondent was at all material times a member of the Association. Despite these findings, the trial court still held that the Association not being a legislative body had no right to impose penalties for disobedience to its rules by members placing reliance on the case of Agbai v Okogbue. Respondents at the trial court appealed against this decision. In allowing the appeal, the Court of Appeal, per Ora, J.C.A. held thus:
I have read the Supreme Court decision in Agbai v. Okogbue (supra). There is no doubt, that the learned trial Judge misconstrued the facts of Agbai v. Okogbue (supra) and inevitably wrongly applied the decision to the different facts in the instant case. In Agbai v. Okogbue (supra), the person whose property was seized was not a registered member of the
AMANKALU AGE GRADE ALIYI, while in the instant case, the respondent is a full-fledged member of the Association. Indeed, the respondent in the instant case is the Secretary of the Association. He is bound by the Association’s terms and conditions as to allocation of quota for distribution of palm oil in Bokkos and Mangu markets and to fines in default.
After distinguishing the case of Agbai v. Okogbue (supra), His Lordship concluded thus:
The position in the instant case is radically different. The respondent being a member of the Palm Oil Traders Association, Mangu Plateau State of Nigeria is subject to the privileges and disadvantages that may arise by that fact. He is deemed to have consented to them, volenti no (sic) fit injuria.
In the case of Rimi v P.R.P., the law in question is the constitution of a political party. In the case of Mbanefo v Molokwu, it is the constitution of Agbalanze Society of Onitsha. In the latter case, the appellant was a regular member of Agbalanze Society of Onitsha, which was an association of titled men. He claimed that on 26/12/2004, he attended a function of the Association where he was ostracized from the Association by the respondents without being informed of the reasons for the action. The respondents’ case was that the respondents and a few other individuals engaged in acts of rebellion against the monarch as well as of great violence to the customs and tradition of Onitsha with a determined objective of occasioning a state of emergency in the Onitsha town. Consequently, the appellant, along with other renegades, were suspended from the activities of the community until they purged themselves of their contempt. This decision was adopted by the ‘Ugwunaobamkpa’ kindred group which the Agbalanze Association adopted. The appellant sued the Agbalanze Association, Onitsha alleging ostracism on the ground that his fundamental rights to peaceful assembly and association has been infringed. This right is enshrined in section 40 of the 1999 Constitution. The trial court dismissed appellant’s case. He appealed to the Court of Appeal. In dismissing the appeal, Tsamiya, J.C.A. held thus:
What must be borne in mind is the fact that the appellant voluntarily joined the association and undertook to abide by its constitution. It follows that he undertook to abide by the decision of Agbalanze Onitsha. He is therefore bound by the decision of Agbalanze Onitsha however unreasonable or unwarranted that decision might be. A man who joins a society as in this case, must abide by the will of such association or clear out. If a man finds himself, as a member of such association and it takes a decision which he does not accept, a decision which could even be contrary to common sense, he has only one course open to him, and that, to get out. He has to abide or get out as voluntarily as he came in….In view of the above observation of mine, I would say that this court will not interfere in a case like this one, where members of a voluntary association have come to implement a decision within the provisions of their constitution even if that implementation of the decision is unreasonable. (Emphasis supplied).
The flip side of this decision of the Court of Appeal is that any pupil is free to adorn any outlandish outfit in a claim of religious right. Yes! Since there must be a law to enforce a ban or restriction before it becomes effective, any pupil could adorn any wear in the absence of any such law. In this light, the proclamation of the Governor of Osun State referring to Christian outfits as inappropriate is an infringement of the fundamental rights of Christian pupils. Since the Bible commands and commends modesty in dressing, Christians who choose to adhere with such admonitions cannot be prevented from doing so since there is no law forbidding them.
This scenario is an invitation to anarchy. It calls for legislative and/or executive intervention in two ways. In the first alternative, the legislature is encouraged to enact laws placing restrictions on dress codes in schools even if such right to deviate from the prescribed uniform is couched in religious or cultural terms, provided that such prohibition should adhere to the indices indicated in section 45(1) of the 1999 Constitution, namely, in the interest of defence, public safety, public order, public morality, public purpose, or for the purpose of protecting the rights and freedom of other persons. The executive is also encouraged to make similar guidelines on this matter. It is in this light that this paper strongly suggests a short cut to undermine the decision of the Court of Appeal in this case. The Lagos State Government should make an Order, Regulation, Circular, or Guideline through the appropriate Government organ or parastatal banning the use of the hijab in public primary and public schools. This will put paid to the controversy and forestall future problems from other religious groups who may claim the religious right to put on wears different from the one identified by their schools.
To this effect, the Lagos State Government could be guided by the legislative intervention which followed the aftermath of the case of N.U.E.E. v. B.P.E. One of the issues in this case was the proper jurisdictional forum for the adjudication of a trade dispute. Is the National Industrial Court or the State High Court? By Decree No. 47 of 1992, the National Industrial Court was given the exclusive jurisdiction to handle trade dispute matters. But the National Industrial Court was not a superior court by the 1999 constitution. In resolving the jurisdictional controversy in favour of the State High Court, the Supreme Court, per Chukwuma-Eneh, J.S.C., held thus:
…, it is trite law that the jurisdiction of the State High Court as conferred by the Constitution can only be curtailed or abridged or even eroded by the Constitution itself and not by an Act or law respectively of the National Assembly or State House of Assembly, meaning that where there is conflict in that regard between the provisions of the Constitution and the provisions of any other Act or law of National Assembly or House of Assembly respectively the constitution shall prevail if I may emphasize excepting as I have observed above by direct and clear provision in the Constitution itself to that effect. I have made the foregoing pronouncements bearing in mind that it has come to be so since our return to Constitutionalism again particularly since the return of democratic dispensation to this country and the end of the Military era. So that Decrees are no longer the fundamental laws of the land.
The Court then concluded thus:
It means therefore that by Decree No. 47 arrogating to the National Industrial Court a superior court of record as has been contended by the appellants does not by that token make the said National Industrial Court a superior court of record without an amendment of the provisions of Section 6(3) and (5) of the 1999 Constitution which has listed the only superior courts of record recognized and known to the 1999 Constitution and the list does not include the National Industrial Court; until the Constitution is amended it remains a subordinate court to the High Court…
In a legislative reaction to this case, the Constitution was amended making the National Industrial Court, a superior court of record. In order to comply with the interpretation given to section 45(1) of the Constitution by the Court of Appeal, the Lagos State Government can only effect the ban on the wearing of the hijab in schools through the machinery of a guideline, a circular, etc. to that effect.
Another legislative intervention could be in the area of amendment of the constitution itself. The following amendment is suggested:
45(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law or practice or administrative decision that is reasonably justifiable in a democratic society or a decision of a competent court made –
in the interest of defence, public safety, public order, public morality or public health; or
for the purpose of protecting the rights and freedom of other persons.
In this case, the facts of the case will determine the decision of the court. It will be appropriate to apply this alternative especially where there is no law in place to checkmate any sartorial anarchy. However, like in the case of legislative intervention, decisions of court should be guided by the indices indicated in section 45(1) as noted above. Indeed, this later alternative appears to be the legal practice in Nigeria.
To wear or not to wear: that is the question. The case under review dealt with the human rights question of whether it is constitutional to wear or not to wear the hijab in school. The Court of Appeal affirmed the right of the female Muslim student to wear the hijab in school. It acknowledges the fact that this right is subject to the limitations imposed by the Constitution. However, the assertion of such limitation must be backed up by legislative or executive actions. Indeed, the Court of Appeal was correct when it held that any policy made by the Government must be in form of a document. But even if the argument that the wearing of school uniform is common knowledge were true, it would not salvage the case of the respondents. By the ipsisima verba of section 45(1) of the 1999 Constitution (as amended), there ought to be a law enforcing a restriction on the wearing of the hijab based on any of the grounds stipulated therein. It is this writer’s contention, however, that such law must not necessarily be made by the legislature or executive. Bye-laws and constitutions of clubs, societies and associations qualify as law to this effect.
The alternative contention of the appellants is that if such a policy exists – that is, the policy of restraining the use of hijab in schools – it is discriminatory. This contention remains a moot point as the Court of Appeal held that such a policy does not exist. It is the view of this writer, however, that the enactment of such a policy in the future would not be discriminatory if the provisions of section 45 of the 1999 Constitution (as amended) is adhered to. Indeed, if the right to wear the hijab is enforced because there is no specific law prohibiting it, it then follows that any other religious group can put on their own dresses because there are no specific laws prohibiting them. As observed earlier, this will lead to sartorial anarchy. A better reasoning is to rule out any dress that does not adhere to the prescribed uniform. The specific mention of a dress code in a school is an implied exclusion of any contrary dress code. To hold otherwise, is to place deductive logic on its head.